A forum for critical analysis of international issues and developments of particular relevance to the sustainable political and socio-economic development of Overseas Countries and Territories (OCTs).

25 August 2014

U.S. confirms absolute Congressional control over its "territory or other property",i.e. the U.S. unincorporated territories

"The legal position of the Obama Administration on the limitations of the non self-governing status of the territories under United States (U.S.) administration is consistent with the policy of every previous U.S. president in recent memory, regardless of political party. I wonder when our leaders will get the message, and develop the political will to take the necessary steps to begin a true process of self-determination.. Our people deserve the opportunity to choose a true democratic political status, rather than the present modernized colonialism which is, indeed, an abomination." - a territorial scholar.

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DOJ: Congress has ‘full and complete’
legislative authority over territories

The U.S. Department of Justice has reaffirmed Puerto Rico’s status as an unincorporated territory of the United States in a legal brief filed in a lawsuit by American Samoa residents who say people born in the unincorporated U.S. territory should automatically receive U.S. citizenship.

In addition, the Department of Justice reiterated that Congress has “full and complete” legislative authority over the territories, and that only “fundamental” constitutional rights are guaranteed in the territories.

The Department of Justice (DOJ) specifically says that Congress has the legislative discretion to grant privileges to those born in the territories, including U.S. citizenship, but that the Supreme Court has never held that Congress must bestow the same privileges upon those born in the territories that the U.S. Constitution bestows on those born in the 50 states.

“The law is crystal clear. Contrary to the baseless arguments put forward by some politicians on the island, Puerto Rico is an unincorporated territory of the United States,” Resident Commissioner Pedro Pierluisi said.

“This status is unequal and undemocratic, and is the principal source of our severe economic problems,” he added in a statement. “If Puerto Rico wants to move forward, it has only two choices: it can become a state or a sovereign nation.”

If Puerto Rico were to become a sovereign nation, whether fully independent from the U.S. or in free association with the U.S., future generations of island residents will not be American citizens and Puerto Rico will receive reduced federal support, according to Pierluisi, the island’s lone member of Congress and president of the statehood New Progressive Party.

The Department of Justice’s brief was filed in Tuaua v. United States, a case pending in the U.S. Court of Appeals for the District of Columbia.

As previously reported by CARIBBEAN BUSINESS online, the case was dismissed by a U.S. District Court judge in the nation’s capital in June 2013. The plaintiffs, five American Samoa residents, appealed the ruling.

U.S. District Judge Richard Leon ruled last year that the 14th Amendment’s citizenship clause doesn’t apply to people born in American Samoa.

Immigration laws classify people born in American Samoa as U.S. nationals, but it’s the only U.S. territory where U.S. citizenship is not a birthright.

Assistant U.S. Attorney Wynne Kelly argued that Congress has the power to determine the naturalization process for potential citizens, and the lawsuit was trying to sidestep that. Kelly represented the federal government and three U.S. State Department officials as defendants.

Eni Faleomavaega, the territory’s non-voting delegate to the U.S. House, filed a brief in 2012 arguing that Congress is the proper venue to decide citizenship, not the courts.

Leon said in his ruling that he agreed with the government’s argument that previous Supreme Court and federal court rulings as well as historical practice trumped the plaintiffs’ assertions.

“Federal courts have held over and over again that unincorporated territories are not included within the citizenship clause, and this court sees no reason to do otherwise,” Leon said.

“To date, Congress has not seen fit to bestow birthright citizenship upon American Samoa, and in accordance with the law, this court must and will respect that choice,” he said.

American Samoa is the only U.S. territory without the birthright of citizenship. Leon said people in the unincorporated territories of Guam, Puerto Rico, the U.S. Virgin Islands and the Commonwealth of the Northern Mariana Islands got birthright citizenship through various laws years after being acquired by the U.S. That wouldn’t have been necessary if the Constitution granted citizenship to people in unincorporated territories, he said.

The lawsuit’s lead plaintiff, Leneuoti Tuaua, said he doesn’t think the issue should be up to Congress.

“(So) long as American Samoa is U.S. soil, I continue to believe that the Constitution guarantees my family the right to citizenship,” he said.

Faleomavaega said he agrees with the ruling but isn’t opposed to citizenship for American Samoans.

“The decision should be made by the people and not by a court,” he said. “After the people decide they desire citizenship, I can work with Congress on legislation to provide citizenship for persons born in American Samoa.”